Articles Posted inSame Sex – LGBT

Custody, In Loco Parentis and Reproductive Assistive Technology

With more couples building families through reproductive assistive technology, custody questions may become an issue if the original family is no longer is intact, if the parents never married, and/or if the non-biological parent did not adopt the child. More and more courts are being asked to determine custody in these cases. There are steps that couples can take to help avoid or minimize this intervention. The facts and result in a recent Pennsylvania case are instructive.

In the case of C. G. v. J.H., J.H. conceived a child by artificial insemination. C.G. and J.H. were not married and Florida (where they resided) did not recognize same sex marriage at that time. J.H. was the biological mother. The child, J.W.H. , was born in Florida in October 2006, while C.G. and J.H. were living together as a same-sex couple. C.G. and J.H. continued to live together for about five more years. The relationship, however, began to wane and J.H. moved with the child to a separate residence in Florida and then moved to Pennsylvania in July 2012.

About three years later, in 2015, C.G. petitioned the Pennsylvania Court for shared legal and partial physical custody, alleging that she, C.G. “also acted (and acts) as a mother to the minor child …[and] the minor child was conceived by mutual consent of the parties with the intent that both parties would co-parent and act as mothers to the minor child.” Since C.G, was not the biological parent, J.H. alleged that she did not have “standing” to bring the matter at all. Because the parties were not married at the time of conception, and because C.G. did not adopt the child, the trial court held extensive hearings looking into the roles of each party to determine whether there was sufficient status for C.G, to raise the claim for custody.

As might be expected, the testimony conflicted. Just as in a traditional custody case, the parties presented extensive evidence including who attended to the child’s “[p]hysical, [e]motional, and [s]ocial needs.” Testimony including facts of day-to-day life was considered by the judge, as were facts regarding decision-making about the child’s medical and educational needs, child care, financial support and other items.Continue reading

The United States Supreme Courts’ landmark decision in Obergefell v. Hodges, recognizing same sex couples’ right to marry is only the beginning of the journey through the world of Family Law for same sex couples and their families. Depending on the state and the domestic relations laws of the jurisdiction, adoption, assisted reproductive technology, custody among other issues remain to be decided. Just recently, the Supreme Court issued a stay blocking the Alabama Supreme Court from implementing a ruling which refused to recognize a second parent adoption, completed in Georgia, by a lesbian mother of the three children she shares with her ex-partner.

V.L and E.L. were in a long-term same-sex relationship in which they planned and raised three children together, using donor insemination. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live. On September 18, 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgments from other states. Under the United States Constitution’s Full Faith and Credit Clause, states are required to respect court judgments, including adoption orders, issued by courts in other states. Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.

In Pennsylvania, any individual can become an adopting parent. The court process used by the unmarried heterosexual, gay, lesbian, bi-sexual, or trans-gendered partner who is not the biological parent to adopt their partner’s minor child is called a Second Parent Adoption. This is different from the adoption of a minor child by their stepparent , which is called a Step Parent Adoption. Continue reading